Concerns around intelligence gathering activities by law enforcement are always of concern to citizens. In some cases one only has to mention the word ‘intelligence’ and people have visions of an Orwellian state. When it comes to intelligence led policing and activities associated with it, the public have a right to keep a watching eye on what law enforcement are doing but for the most part the average law abiding citizen has nothing to be concerned about. Law enforcement has neither the interest nor the resources to go prying into an innocent person’s life.
However, when it comes to preserving public order and investigating crime there is always the potential for the engagement of civil liberties and law enforcement agencies must have in place structures to prevent the civil liberty violations. The topic of civil liberties is by its very nature a broad one which can impact a citizen in many ways. These include matters pertaining to freedoms of association and travel (both of which are engaged if law enforcement carry out any form of surveillance on a person), to the right of an accused to have a fair trial. When a law enforcement agency adopts an ‘intelligence led policing’ approach there will always be an engagement with civil liberties but this does not mean that there will be a violation of civil liberties provided the agency has in place the structures to avoid such.
1. The agency must have in place a process to manage all covert activities where the civil liberty issues arise. Separate but similar processes will be required for activities such as undercover operations, surveillance, interception of communications and managing a confidential informant. In some instances legislation may require that a warrant is sworn. The authorization process is intended to complement, not replace such a requirement.
2. An officer should complete a written application prior to carrying out any operation likely to have an impact on the civil liberties of any person. This application should include a summary of the matter being investigated, how the person whose rights will be engaged is linked to that investigation and the nature of the activity that is proposed. This application should be forwarded to an officer of an appropriate rank whose responsibility it is to authorise such activity. This would normally be someone of captain rank or equivalent.
3. The application must show why the activity that is proposed is necessary to achieve the aims of the investigation. In order to prove necessity the officer must state why other less intrusive and more traditional means of investigation have failed or are likely to fail. The application should include a detailed risk assessment including risks to both the public and any confidential informant that is involved.
4. The authorizing officer should examine the application and set parameters for the intelligence gathering operation. These limits should include the nature of the activity that is permitted and the duration of that activity.
5. Where the nature of the activity is more intrusive a higher level of authorization should be in place. This would be required for example in deploying an undercover officer into a place of worship or where a juvenile confidential informant is used.
6. The agency must keep comprehensive records of all operations. These records should be kept in a central location. Officers should not be allowed to keep records pertaining to intelligence collection under their own control.
7. All records should be kept to evidential standards. Given that the primary goal of most intelligence gathering operations will be to ultimately bring the perpetrators to trial, all records with regard to operations should meet evidential standards. This ensures a citizen’s rights to a fair trial.
8. At the termination of the operation all records should be examined to ensure that any intelligence collected has been legally collected. This review should also ensure that the maximum amount of information has been processed into intelligence and is stored legally.
9. There should be regular audit of all covert operations to ensure that the agency is not unlawfully engaging civil liberties. Audits should be carried out by a person independent of the operation.
10. Statistical data relating to the nature of covert operations and the results of those operations should be readily available at any time, for the head of the agency. Monitoring what is being a done, by whom and what it is achieving is just one way of reducing the risk of officers being drawn into situation where citizen’s rights are violated.
When it comes to an agency adopting an intelligence led policing strategy, these simple steps ensure that a law enforcement agency has adopted a proactive approach to addressing civil liberty issues that provides reassurance to the citizen’s it has undertaken to protect. Furthermore, It is always worth remembering there are always defence lawyers out there willing to exploit any vulnerability to gain an acquittal - cases should not be lost because of poor law enforcement processes. The steps mentioned above significantly mitigate the risk of cases being dismissed purely because of an alleged civil liberty violation.
HSM Training and Consultancy work with law enforcement and intelligence agencies on an international basis addressing civil liberty issues in the intelligence environment and can provide expert testimony in related cases.